The Language of Jury Trial

The Language of Jury Trial A Corpus-Aided Analysis of Legal-Lay Discourse

Chris Heffer Lecturer in Language and Communication Centre for Language and Communication Research Cardiff University

* © Chris Heffer 2005 Softcover reprint of the hardcover 1st edition 2005 978-1-4039-4247-0 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission.

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To My Wife Cristina 'always'

The most I can claim is that, as with the stereoscope, depth is better achieved by looking from two points at once.

Gerome Bruner, Actual Minds, Possible Worlds)

Contents

List of Tables, Figures and Texts X

Acknowledgements xiii

Conventions xiv

Introduction XV

Part I Communication in Jury Trial 1

1 Legal-Lay Discourse 3 Introduction 3 Discourse 3 Professional discourse 10 Cultural-cognitive modes 17 The modes and discourse 22 The modes and legal-lay discourse 29 Conclusion 35

2 Coming into Court 37 Introduction: the courtroom 37 Doors into court 39 Communication in court 46 The transcripts and representation 52 The corpora and representativeness 58 Conclusion 63

3 The Trial as Complex Genre 65 Introduction 65 Perspectives on the trial 65 The trial as ritual 72 The opening address and the crime story 75 Witness examination: the trial as contest 77 The closing arguments and the trial story 84 Summing-up and beyond: the trial as judgement 87 Conclusion 91

vii

viii Contents

Part II Witness Examination

4 The Counsel as Narrator Introduction Free witness narrative 'Showing' and 'telling' in examination-in-chief Narrating through the witness Narrating despite the witness: cross-examination Conclusion

S The Counsel as Subject Introduction Subjectivity and the cross-examiner The expression of judgement Projecting one's case Evaluative pointing Evaluative peaks Conclusion

Part III The Judge's Summing-up

93

95 95 95

102 110 120 124

126 126 127 131 135 141 150 152

lSS

6 Directing the Jury 157 Introduction 157 Helpers and opponents 158 The summing-up and narrative accommodation 161 Narrativization and categorization in the proof directions 166 Knowledge, belief and comprehension 175 Conclusion 180

7 (Re)Viewing the Case 182 Introduction The review of evidence and judicial perspective Language and judicial comment Linguistic strategies in judicial comment Perspective and directionality Conclusion

182 183 185 188 201 207

8 Conclusion 208 Review of the evidence: legal-lay discourse in jury trial 208 Deliberation: some implications for jury trial 212 Verdict: a bridge between law and life 218

Contents ix

Appendix 1 Overview of Corpora 220

Appendix 2 EXAMINATIONS Copora 221

Appendix 3 SUMMING-UP Corpus 224

Notes 226

References 230

Index 239

List of Tables, Figures and Texts

Tables

Table 1.1 Key strategies in the narrative and paradigmatic modes of reasoning 23

Table 2.1 Witness types according to background, evidence type and control required 43

Table 2.2 Alternative forms of agreement in EXAMINATIONS corpus transcripts 56

Table 2.3 Interruptions in witness examinations 57 Table 3.1 Trial perspectives and discourse 67 Table 3.2 Levels of challenge 81 Table 3.3 Length of examinations in R v Speak 82 Table 3.4 Reference to defendant and claimants in

closing speeches of R v Speak 85 Table 4.1 'Bush' and story schemas 97 Table 4.2 Witness response lengths in chief and

cross-examination 99 Table 4.3 Narrative and non-narrative extended turns 100 Table 4.4 Narrative and non-narrative extended turns

by examination type 101 Table 4.5 Narrative and non-narrative extended turns

by witness type in CHIEF 101 Table 4.6 Request type, form and degree of counsel

control over information 112 Table 4.7 Distribution of counsel's request types as

percentage of total turns in CHIEF and CRoss 114 Table 4.8 Distribution of witness response types in CHIEF

according to witness type 117 Table 4.9 Witness turn lengths in examination-in-chief

according to witness type 118 Table 4.10 Counsel turn lengths in CHIEF and CRoss 121 Table 4.11 Distribution of INFORM and CONFIRM requests in

CHIEF and CROSS 122 Table 5.1 Contrastive keywords in counsel turns in CHIEF

and CROSS 129

X

List of Tables, Figures and Texts xi

Table 5.2 The cross-examiner's !-clusters in CRoss 136 Table 5.3 Salient right collocates of cross-examiner's I 137 Table 5.4 Suggest and put (to) per 1000 occurrences of I in

CHIEF, CROSS and COBUILD 139 Table 5.5 Suggesting in CRoss and CoBUILD 140 Table 5.6 Distribution of indirect objects with counsel's

use of TELL in CHIEF and CRoss 142 Table 6.1 Functions of judge and jury 162 Table 6.2 Structural realizations of the summing-up 162 Table 6.3 Mode tendencies of proof directions 174 Table 6.4 The judge's mini-narratives 179 Table 7.1 Top keywords in REVIEW 196 Table 7.2 I suggest and you may think in CRoss, REVIEW

and BNC 201

Figures

Figure 1.1 Key communication elements (above line) and focus of attention (below line) 5

Figure 1.2 A simplified model of legal-lay discourse as communication process 9

Figure 2.1 Entrances and seating arrangement in a typical Crown Court 37

Figure 2.2 Simple schema of a Question-Answer sequence in witness examination 48

Figure 3.1 A model of jury trial as complex genre 71 Figure 3.2 Impression and picture in defence closing speech

of R v Speak 86 Figure 4.1 Length of witness response turns in chief- and

cross-examination 99 Figure 4.2 Distribution of witness narrative in Sheila Bush

examination 103 Figure 4.3 Basic narrative structure of Bush

examination-in-chief 104 Figure 5.1 Tell + principal addressees in CHIEF and CRoss 142 Figure 5.2 Told+ principal addressees in CHIEF and CRoss 143 Figure 5.3 Telling+ principal addressees in CHIEF and CRoss 145 Figure 5.4 Telling the/this jury in CRoss 145 Figure 6.1 Biber's text-variation dimensions compared to

narrative and paradigmatic modes 168

xii List of Tables, Figures and Texts

Figure 6.2 Handling stolen goods 177 Figure 7.1 Modification of judicial perspective in the

review of evidence 189 Figure 7.2 A galaxy of linguistic options for expressing

epistemic possibility 194

Texts

Text 1.1 A Crime Narrative 24 Text 1.2 A Defence Submission 26 Text 3.1 An Objection Sequence 82 Text 4.1 A Free Witness Narrative 96 Text 4.2 Counsel's Strategic Analysis 106 Text 4.3 A Cross-examiner's Narrative 123 Text 5.1 The 'Rhyme of the Cross-examiner' 149 Text 5.2 Humiliation 151 Text 6.1 A Pattern Jury Instruction 159 Text 6.2 Recklessness 164 Text 6.3 A Specimen Jury Direction 165 Text 6.4 Analysis of the Specimen Proof Directions 173

Acknowledgements

Many friends, colleagues and mentors have contributed to the making of this book, and though too numerous to mention individually, I am indebted to them all. Friends have patiently accepted my absent presence and my family have given me constant support from New Zealand and Italy. My former linguistics colleagues at Nottingham Trent were very supportive - particularly Liz Morrish and Louise Cummings, who have been a true pleasure to work with. Members of the International Association of Forensic Linguists and the Forensic Linguistics Group in Birmingham have provided opportunities for stimulating and critical discussion. Thanks go in particular to Malcolm Coulthard, Peter Tiersma, Larry Solan, Frances Rock, Tim Grant and Charles Owen. A special thank you is reserved for Paul Simpson, who provided perceptive commentary on an early version of this work.

I am grateful to the editorial staff at Palgrave Macmillan, who have been quick, efficient and patient throughout the editing process. I am particularly appreciative of Jill Lake's advocacy for the project, and for the comments and suggestions of referees, as well as the perseverance of the copyeditors and typesetters. A version of Chapter 6 was pub­lished in J. Cotterill (ed.) Language in the Legal Process (2002) and is reprinted here in a considerably revised form with the kind permission of Palgrave.

Two people deserve special mention for having shaped this book in a fundamental way. As well as being supportive as a friend and col­league, I am extremely grateful to Janet Cotterill for having introduced me to the field of language and law, and for making available to me the large transcript database from which I compiled my research corpora. I am also deeply indebted to Michael Toolan for being an understanding, intellectually stimulating and patient supervisor during my PhD, and for his invaluable support since then.

This book would simply not have been possible, though, without the vital contribution of my wife Cristina. She has not only provided con­stant love, support and encouragement at all stages of the project, but she has also been an extremely perceptive reader and discussant of my work. It is to her, then, that I dedicate this book.

xiii

Conventions

bold highlighted forms in cited data then it must be true highlighted forms in main text called legal-lay

discourse italics linguistic forms cited in main text epistemic must is

frequent phonological stress in data he would have pelted

him non-indented citation from text she says 'it must be or data true'

SMALL CAPS names of corpora and subcorpora CROSS, REVIEW

CAPITALS lemmas (citation forms)* THINK {thinks, thought etc)

{ ...... } lexical set {feel, like, felt, love) [ ...... ] source of corpus data then it must be true

(see appendices) [CR26]

* This convention is used only when it is crucial to distinguish a lemma from its individual forms. Otherwise lower case italics are used.

Pronoun usage: Participants are referred to generically in a variety of different ways. Judges (who are still predominantly male) are often referred to as he while witnesses are often referred to as she. My pre­ferred bias-free choice would be singular they, but this has not yet become fully accepted in formal discourse.

xiv

Introduction

This book explores the way legal professionals attempt to communicate with ordinary people in the context of criminal trial by jury. It deals with such issues as how trial lawyers manage to persuade juries of their case while working under tight discoursal constraints, how judges try to explain relevant legal points to jurors who are not well versed in the law, and how legal professionals accommodate their language to the lay participants before them. The main objective of the study is to provide a descriptive and explanatory account of the hybrid 'legal-lay' discourse that arises when legal professionals interact with lay people in court. This is intended to contribute to the longstanding debates on both the 'language problem' in the trial process and the relative effectiveness of different modes of trial.

The central argument, outlined in Chapter 1, is that legal-lay dis­course is characterized by a strategic tension between two markedly different ways of viewing the trial: as crime narrative or legal argu­ment. Drawing on the cultural-cognitive notion of different 'modes of thought' (Horton and Finnegan 1973; Olson and Torrance 1996), I adopt Bruner's distinction between a 'narrative' and a 'paradigmatic' mode. At its simplest, reasoning in the narrative mode means striving to understand the actions and intentions of humans situated in place and time, while reasoning in the paradigmatic mode means striving for ideal logical systems of description and explanation (Bruner 1986). Everyday adult reasoning is dominated by the narrative mode, while the paradigmatic mode underlies the type of logico-scientific reasoning found in most academic disciplines, including law. In the context of jury trial, legal professionals have been taught to follow 'paradigmatic' legal principles and procedures, and are well aware of the contribution an evidential point might make to their logic-based legal case. At the same time, they are equally well aware of the need to communicate with and persuade a group of lay people (the jurors) who are unlikely to reason in a paradigmatic fashion with respect to evidence detailing the crime narrative at the heart of the case. Both paradigmatic and nar­rative modes of thought are indispensable, then, to the criminal trial process, but they are also incommensurable: neither can be fully stated in the vocabulary of the other and so they are incapable of being meas­ured against a common standard (Kuhn 1962). This creates a discoursal

XV

xvi Introduction

tension which I argue is manifested in both the macrolinguistic struc­tures of the various courtroom genres and in the microlinguistic choices of the legal professionals.

As the 'narrative turn' has become fashionable in a number of social scientific fields (Polkinghorne 1988), so there has been a tendency, par­ticularly among postmodernists, to privilege the subjectivity of the nar­rative mode over the objectivity of the paradigmatic mode (Olson 1996). This is certainly not my intention here. Indeed, I believe that both modes are as indispensable in social scientific research as they are in the courtroom. Spence (1986), discussing Freud's methodology, warns of the dangers of 'narrative smoothing', or the tacit editing of inconsistent narrative information. This can occur at two levels. In the collection and initial analysis of the data, it can mean only 'hearing' what fits your preconceived narrative (1986: 223). At the level of report and article writing, it can mean selecting only that data that supports your argument. The danger is that the reader is receiving a highly refracted view of the data, making comparison between different data sets difficult. On the other hand, the paradigmatic researcher will attempt to give equal weight to all aspects of the data, but in doing so might fail to make significant connections and fail to engage the reader. Along with the theoretical argument about legal-lay discourse, then, I am also pursuing in these pages a complementary argument about social-scientific methodology: that it is both possible and neces­sary to combine paradigmatic and narrative mode approaches to the study of discourse to avoid the twin pitfalls of unwarranted subjectivity and un-illuminating narrowness.

The overall approach I have developed in this study I term explo­ratory discourse analysis. At its simplest, discourse analysis is the investigation of the structure and function of language as manifested in oral or written texts. As such it should be contrasted with approaches to language, such as theoretical linguistics, which are concerned with lan­guage as an abstract system. One key feature of discourse analysis is its concern with the contextual embeddedness of language: text is consid­ered to be determined by a wide variety of factors, such as the medium in which it is expressed, the intentions and beliefs of the participants, the socially recognized purpose of the act of communication, and its relation to other texts. As its name suggests, discourse analysis is not an ology or ography: it is not a discipline or branch of knowledge in its own right. Instead, it is a form of analysis, where 'analysis' is under­stood as the systematic taking apart of an object Gohnstone 2002: 3-4). In the analysis of discourse, the object texts are systematically taken

Introduction xvii

apart by a wide variety of methods. Analysts vary considerably as to whether they focus on one method in particular (e.g. Atkinson and Drew 1979, who adopt the methods of Conversation Analysis) or draw eclectically on a variety of methods in the same study (e.g. Cotterill 2003). The advantage of the former approach is theoretical and methodological parsimony. The advantage of the latter is that it enables the researcher to view the same object from a variety of different angles.

The approach I take to discourse in this study is exploratory. It is a precondition of exploration that one should venture into uncharted territory. The specific territory I explore here is the language of legal professionals in English jury trials. This is uncharted by academic research in at least two respects. Firstly, owing to severe restrictions on research access to Crown Courts, there has been virtually no study of the actual language used in English jury trials. The pioneering study of courtroom interaction by Atkinson and Drew (1979) was set in judge­only 'Diplock courts', set up to try terrorist-related cases in Northern Ireland in the early 1970s. Harris (1984) is a study set in English magis­trates' courts. However, this represents the first large scale study of the language of English jury trial, and it reveals features which might come as a surprise to observers of the more accessible US context. Secondly, this is the first large scale study of the language of legal professionals in jury trial in any context. Other book-length studies have focussed on the language of witnesses over a large number of trials (O'Barr 1982) or on the language of lawyers and their interaction with witnesses over a single trial (Stygall 1994; Cotterill2003). There have also been several studies of the language of judges, but in very different contexts: Philips (1998) is a detailed study of the language of judges in court, but in the restricted context of the taking of guilty pleas, while Solan (1993) is a study of judicial judgement, and ]acquemet (1996) analyses the lan­guage of investigative judges in the Italian inquisitorial system. Robertshaw (1998) does analyze the language of judges in summing­up, though using a somewhat esoteric form of rhetorical analysis.

The exploratory nature of this study is manifested both in its approach to theory and methodology and in its use of corpus techno­logies. I have tried not to exclude any theories or methods a priori. While it is neither possible nor desirable to embrace all methods, and it is inevitable that one will develop preferences, there is a tendency in academia, and particularly in linguistics, to set up dichotomies and then privilege one term over the other. Martin (2000: 162), for example, lists a long set of oppositions which 'formal and functional linguists will evaluate ... with firm convictions about what the good guys and

xviii Introduction

the bad guys should celebrate'. The oppositions include, among others, 'cognitive/social', 'theory/description', 'intuition/corpus', 'pragmatics/ context', and 'psychology & philosophy/ sociology & anthropology'. Splitting the world into heroes and heroines, good and evil, is a basic narrative desire, but we would do well to resist this narrative urge for the sake of academic understanding. It is inconceivable how a mature understanding of discourse can be formed while ignoring one of the terms in each of these dichotomies: utterances are conceived and received in the brain but generally serve a social function; description naturally leads to theory; corpora provide empirical confirmation or disconfirmation of our powerful intuitions about language; pragmatics is centrally concerned with context (though it needs itself to become more multidisciplinary (Cummings 2005)); and all the social sciences (as well as philosophy and some pure sciences) can potentially con­tribute to our understanding of discourse. The exploratory nature of a study warrants exploration also of appropriate methodologies and theories. Once the territory is mapped out more fully, then one can start demanding theoretically tighter projects.

Another way in which I consider my approach exploratory is in its use of large scale corpus analysis. The texts collected in the various corpora (Chapter 2) are taken from over 100 diverse trials and repre­sent extended contributions from over 100 barristers and over 60 judges. One way of 'taking apart' such texts is to subject them to sys­tematic computer analysis using corpus retrieval software. WordSmith Tools© (Scott 1996), used in this study, enables the user to automatic­ally produce concordances of words and phrases and to produce stat­istics on how frequently words occur (frequency), where they are likely to occur (distribution), which words they are likely to be found with (collocation), and how 'distinctive' they are to the particular text or corpus under investigation (keyness). It is possible in this way to find frequent lexical and phrasal patterns which might be posited as typical of legal-professional usage. Such quantitative corpus analysis provides a check on the temptations of narrative smoothing outlined above. Numbers can cue salient discoursal features and help demythologize preconceptions, though I see no need for complex statistical measures in exploratory discourse analysis.

The use of large corpora provides great breadth to a study but, given inevitably finite resources, breadth is usually inversely proportional to depth in a linguistic study (Milroy and Gordon 2003). One inevitable 'depth' concern, particularly for conversation analysts and ethnogra­phers, is the use of official transcripts rather than original recordings

Introduction xix

(see Chapter 2). To some extent this was simply an operational neces­sity: it is not legal to make research recordings in English Crown Courts. But even if it had been legal, this would have improved the reliability of the data, though not necessarily the depth of analysis given the inevitable trade-off between breadth and depth. Never­theless, the use of transcripts pre-prepared by non-linguists is clearly a limitation of this study. To compensate for this unavoidable limita­tion, analysis of the transcript data was accompanied and supported by extensive ethnographic research in the Crown Courts in Birmingham. As a further point of triangulation, comparisons were made between data in the research corpora compiled specifically for the study and those in the two largest general reference corpora of British English: the British National Corpus (BNC 2000) and the Bank of English (COBUILD 2002). It would be nai:ve at the very least to claim that I have excluded all my presuppositions and priorities, but I believe you can strive, as Gadamer (1984) notes, to ask the question 'How can a text be protected from misunderstanding from the start?'

This book is intended primarily for social scientists and legal profes­sionals with an interest in understanding and improving the commun­icative mechanisms of jury trial. It works primarily from within a linguistic tradition, but makes no assumption of prior linguistic know­ledge. Nor does it investigate the trial context primarily to say some­thing about language. To that extent, this is very much a work of applied linguistics, with the focus on applying linguistics to social problems. Given its exploratory and explanatory nature, it does not provide immediate solutions to the problems of communication it raises, though some speculative suggestions are made in the conclu­sion. Rather, it is intended to raise questions which might be investi­gated in more specific studies. Equally, this study does not provide a radical critique of jury trial which offers no way forward. I see no point in radical critiques unless a viable alternative is proposed. The implica­tions of the study to the workings of the legal process and the criminal justice system will be discussed in the Conclusion.

In the chapters that follow, then, I explore the nature of legal-lay discourse in jury trial and the extent to which it can be accounted for in terms of the narrative and paradigmatic modes. Part I explores the general nature of legal-lay communication in jury trial. The foundations of this discourse are laid out in Chapter 1, which also presents the argu­ment for narrative and paradigmatic modes of thought and shows how they are relevant to the discourse of legal professionals before lay jurors. Chapter 2 provides a contextual orientation to communication in jury

xx Introduction

trial and discusses the status of the linguistic researcher coming into such a context, along with the methodological difficulties they face. Chapter 3 considers the nature of jury trial as a complex genre, and draws on a typical Crown Court trial from the data collection to provide an overall picture of the trial as an ongoing dialectic between the narra­tive and paradigmatic modes of thought.

Part II focuses on the lawyer's acts of persuasion during witness examinations, and particularly on the way counsel manage to harness the narrative mode to their cause despite the paradigmatic restrictions imposed by courtroom protocol. Chapter 4 develops the argument in Chapter 3 that counsel construct a narrative through their own wit­ness in examination-in-chief and a narrative or case theory despite the opposing witness in cross-examination. Cross-examination is crucially concerned with judging the credibility of witnesses, and Chapter S investigates how advocates express their judgements through overt lexical signals and how they manage to show solidarity with the jury and alienate the witness by putting their subjectivity 'on stage' through a variety of strategic linguistic devices.

Finally, Part III explores the judge's principal speech in the trial: their summing-up to the jury. Chapter 6 introduces the summing-up as a genre and investigates the judge's legal directions to the jury. In doing so, it makes an attempt to establish putative links between specific lin­guistic features and characteristics of the two cultural-cognitive modes and to use the resulting model as a means of characterizing variation in judicial discourse. Chapter 7, on the other hand, focuses on the judge's review of the evidence in the case and presents a linguistic framework for studying judicial point of view. Relating this analysis to the cognit­ive modes raises new questions about the true function of this judicial summary. My own summing-up in the final chapter assesses what this study does and does not tell us about legal-lay discourse and considers how a deeper understanding of the nature of this type of discourse might help us reach a verdict on trial by jury as a key instrument of the criminal justice system.

In this study, then, I explore how legal professionals 'make' cases: how barristers manage to construct and deconstruct narratives of the case and how they manage to persuade the jury of their view of the case; how judges attempt to put across to the jury the legal frame­work within which they should view the case, and how they manage to convey their own view of the evidence in that case. At the same time I attempt to make my own case with regard to legal-professional discourse before juries: that it is the product of a complex interplay of

Intoduction xxi

cognitive and discoursal tendencies of the narrative and paradigmatic modes, and that its communicative success depends on achieving the right balance between the two modes. Finally, I make a methodological case for attempting a similar balance in the linguistic study of language in the legal process. Like counsel, I am making a case based on the accu­mulation of various forms of evidence drawn from a wide variety of different sources. As in all cases, some of the evidential points might be stronger or more reliable than others, but I am predicating the success of this study on the overall weight of the evidence.